Florida - COMMUNICATION
First DCA denies certiorari petition seeking to stop post-trial juror interviews on ground that petitioner will not suffer irreparable harm if interviews take place. [Added 2/6/17]
After a verdict for Plaintiff in a personal injury suit, a juror contacted the trial court about the case. When the trial court told the parties’ lawyers, Defendant’s counsel announced that two jurors had approach defense counsel after the trial and suggested that jurors had agreed not to follow the court’s instructions. Over Plaintiff’s objection, the court ordered a limited interview of one juror. The court then considered Defendant’s motion to interview additional jurors. The court ordered interviews with the 5 remaining jurors.
Plaintiff filed a petition for certiorari with the First DCA. The appellate court denied the petition, ruling that Plaintiff had not met the certiorari requirement of showing irreparable harm. “If the interviews go forward and led to an order granting a new trial, then [Plaintiff] can appeal that order.”
The appeals court certified conflict with the Second DCA (Pesci v. Maistrellis, 672 So.2d 583 (Fla. 2d DCA 1996)). Laycock v. TMS Logistics, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-5518, 1/19/2017), 2017 WL 213909.
Second DCA reverses sanctions imposed against lawyer who gave “dishonest” answers to trial judge in matter involving Facebook research on juror. [Added 4/9/16]
Lawyer represented Defendants in a suit over dissolution of a dental practice. At the end of the day in which the jury was selected, the trial court warned the jurors to avoid any contact with parties, lawyers, or witnesses, and instructed them not to do “any electronic research on the Internet or any other electronic devices.”
The next morning Lawyer informed the judge that she wanted to strike a juror for cause “because the juror was a Facebook friend of one of [Lawyer’s client’s] employees.” The judge became upset and admonished Lawyer for violating the court’s instructions to the jury. When the judge asked Lawyer how she learned the information, Lawyer “gave three different answers to the inquiry.” None of her answers involved contact with the juror.
Plaintiff moved for a mistrial. The court found that Lawyer had acted in bad faith and granted the mistrial. Plaintiff also moved for sanctions against Lawyer. The court granted the motion and ordered Lawyer to pay the fees and costs of Plaintiff’s counsel. Lawyer appealed.
The Second DCA reversed. Lawyer gave the court “inarticulate, evasive, and dishonest answers. As a consequence, she violated her oath as an attorney to be honest before a tribunal. See R. Regulating Fla. Bar 4-3.3(a)(1) (‘A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.’); 4-8.4(c) (‘A lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’).” Despite this, however, Plaintiff had not proved his case for sanctions. In the view of the appeals court, Lawyer’s “dishonest answers” did not prevent a fair trail from being held and did not result in Plaintiff incurring additional fees.
The appeals court further noted that the trial court’s order regarding refraining from research “was directed to the jurors – not the attorneys or the parties – and could not be a basis for the imposition of sanctions against [Lawyer]. There is no prohibition in Florida law against an attorney researching jurors before, during, and throughout a trial so long as the research does not lead to contact with a juror. An attorney is not obligated to inform the court of such research unless it affects the fairness of the trial and the administration of justice.” Tenev v. Thurston, __ So.3d __ (Fla. 2d DCA, No. 2D14-4566, 3/9/2016), 2016 WL 886280.
Court erred in granting motion for post-trial juror interviews, where information in question was immaterial and irrelevant to jury service in the case. [Added 11/11/15]
Defendant physician prevailed in a medical malpractice suit after a 3-week jury trial. Plaintiff moved for post-trial interview of jurors, alleging that court records showed 3 jurors had litigation history that was not disclosed during voir dire. The trial court granted the motion. Defendant petitioned the Third DCA for a writ of certiorari.
The Third DCA granted the petition and quashed the order granting the interviews. De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), established a 3-part test to determine whether a juror’s nondisclosure of information during voir dire warrants a new trial. The first part requires the movant to show that the undisclosed litigation history was “relevant and material to their jury service.” In this case, Plaintiff failed to make that showing. Several of the prior cases in question were more than a decade old, and none were material to the current litigation. Penalver v. Masomere, __ So.3d __ (Fla. 3d DCA, No. 3D14-2193, 11/4/2015), 2015 WL 6738845.
First DCA upholds constitutionality and validity of medical malpractice presuit notice sections of F.S. 766.106 and 766.1065, which allow for ex parte interviews between potential defendants and claimant’s health care providers. [Added 8/5/15]
Appellant filed a complaint seeking a declaratory judgment and an injunction, alleging that amendments to the medical malpractice presuit notice sections of F.S. 766.106 and 766.1065 violated the Florida Constitution and HIPPA (Health Insurance Portability Accountability Act of 1996). Among other things, under the amended statutes “a claimant now cannot institute a medical malpractice lawsuit without authorizing ex parte interviews between the claimant’s health care providers and the potential defendant.”
Specifically, Appellant contented that the statutory amendments: “(1) violate the separation of powers doctrine; (2) violate the constitutional limitation on special legislation; (3) impermissibly burden the constitutional guarantee of free access to the courts; (4) violate the decedent’s constitutional right to privacy; and (5) are preempted by” HIPAA.
The trial court determined that the statutes were valid. The First DCA affirmed. Weaver v. Myers, __ So.3d __ (Fla. 1st DCA, No. 1D14-3178, 7/21/2015), 2015 WL .
Court abused discretion in denying motion for post-trial juror interview. [Added 5/20/15]
Plaintiff sued Defendant for neck injuries allegedly sustained in an auto accident. During voir dire the jury panel was asked whether they or an immediate family member had been a plaintiff in a personal injury suit, had made a claim for money damages without filing suit, had been diagnosed with a herniated disc, or had made a claim to recover Social Security benefits. Juror Diaz did not respond to any of these questions.
The jury found Defendant 25% at fault and Plaintiff 75% at fault for the accident. After the verdict, Defendant’s investigator discovered that Juror Diaz “was listed as a possible witness in her mother’s case. Additionally, her mother had undergone surgery on her spine as a result of the fall. The investigation also revealed that Juror Diaz’s father had received Social Security disability benefits.” Defendant’s motion for juror interview was denied because Defendant “failed to demonstrate how Juror Diaz’s failure to disclose this information was material.”
The Fourth DCA reversed and remanded for the trial court to conduct the requested interview. “The information Juror Diaz concealed about her mother’s lawsuit was material. It pertained to a lawsuit similar enough to the instant case that not knowing this information prevented appellant’s trial counsel from making an informed decision. [Defendant] exhausted two of her peremptory challenges on potential jurors who had histories similar to that of Juror Diaz.” Barrios v. Locastro, __ So.3d __ (Fla. 4th DCA, No. 4D13-861, 5/20/2015),
Court erred in denying post-trial motion for interviews of jurors who failed to disclose their litigation history. [Added 2/27/14]
Two defendants were sued in a slip and fall case. The jury returned a verdict for the plaintiff. Defendants filed a post-verdict motion seeking to avoid a judgment. Among the grounds asserted was the denial of a motion to conduct interviews of 4 jurors who did not disclose their involvement in prior litigation.
On the juror interview issue, the Fourth DCA reversed and remanded to allow defendants to interviews 3 of the 4 challenged jurors.
The 4 jurors had answered “no” when asked by defense counsel during voir dire whether they or any family members ever participated in a suit as a party or witness or otherwise. Investigation showed that each of the jurors was involved in prior civil litigation.
The appeals court concluded that the trial court abused its discretion in denying the motion for juror interviews. The defendants satisfied the 3-part test of De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), which applies when the basis of the motion for juror interviews is the alleged non-disclosure of information during voir dire. Under this test the moving party must show: “(1) The concealed information was relevant and material to jury service in the case; (2) The juror concealed the information during questioning; and (3) The failure to disclose the information was not attributable to the complaining party’s lack of diligence.”
Here, the information was both relevant and potentially material to the slip and fall case; 3 of the 4 jurors’ litigation involvement occurred within the past 4 years, and one of the jurors was in a personal injury suit. The jurors clearly concealed the information sought; “the court unambiguously asked the challenged jurors whether they or their families were involved in or had been involved in any litigation apart from divorces, and all four categorically answered that they had not.” The third prong of the De La Rosa test was met because the jurors flatly answered “no” when asked about their litigation history, and so defense counsel was not required to follow up; “[t]he parties were entitled to rely on the sacrosanct underpinnings of voir dire.” The court further noted that the trial court failed to hold a hearing as required by Fla.R.Civ.P. 1.431(h), which has been interpreted to “require the court to hold a hearing before denying the motion to interview jurors, at least if the motion is facially valid.” Pembroke Lakes Mall Ltd. v. McGruder, __ So.3d __ (Fla. 4th DCA, No. 4D11-4005, 2/26/2014), 2014 WL 714706.
Court did not abuse its discretion by denying post-trial motion to interview juror in tobacco liability case. [Added 9/11/13] -- Lorillard Tobacco Co. v. Alexander, 123 So.3d 67 (Fla. 3d DCA 9/4/2013).
Supreme Court adopts rules regulating use of electronic devices by jurors and others in court. [Added 7/8/13] -- In re: Amendments to the Florida Rules of Judicial Administration – Rule 2.451 (Use of Electronic Devices), 118 So.3d 193 (Fla. 7/3/2013).
Rejecting recommended 1-year suspension, Supreme Court suspends lawyer for 2 years for undisclosed communications with judge during murder trial. [Added 6/24/13] -- Florida Bar v. Scheinberg, 129 So.3d 345 (Fla. 6/20/2013).
Court erred in denying motion for new trial based on alleged juror misconduct without conducting juror interview. [Added 5/2/13] -- Hillsboro Management, LLC v. Pagono, 112 So.3d 620 (Fla. 4th DCA 4/24/2013).
Supreme Court holds that physician-patient confidentiality law bars ex parte meetings between nonparty treating physician and lawyer hired by her insurer. [Added 12/21/12] -- Hasan v. Garvar, 108 So.3d 570 (Fla. 2012).
Court erred in denying party’s motion to conduct post-trial interviews based on alleged concealment of material information during voir dire. [Added 9/14/12] -- Borroto v. Garcia, 103 So.3d 186 (Fla. 3d DCA 2012).
Order broadly restricting a party from engaging in out-of-court communications about the case is reversed. [Added 7/19/12] -- Romero v. Erik G. Abramson, P.A., 113 So.3d 870 (Fla. 2d DCA 2012).
Supreme Court criticizes lawyer for disregarding “spirit” of rules governing post-trial communication with jurors. [Added 6/15/12] -- Van Poyck v. State, 91 So.3d 125 (Fla. 2012) (revised opinion).
Criminal conviction reversed due to trial judge’s ex parte communication with the prosecution. [Added 2/28/12] -- Howell v. State, 80 So.3d 441 (Fla. 4th DCA, No. 4D10-2498, 2/22/2012).
Court properly denied motion for post-trial juror interviews because movant failed to sufficiently inquire during voir dire. [Added 1/17/12] -- Rodgers v. After School Programs, Inc., 78 So.3d 42 (Fla. 4th DCA, No. 4D10-1307, 1/11/2012).
Court erred in denying post-trial motion to interview jurors in criminal case. [Added 11/1/11] -- Gray v. State, 72 So.3d 336 (Fla. 4th DCA 2011).
Court erred in denying post-trial motion to interview jurors who allegedly concealed information during voir dire. [Added 6/2/11] -- State Farm Mutual Auto. Ins. Co. v. Lawrence, 65 So.3d 52 (Fla. 2d DCA 2011).
Lawyer publicly reprimanded for threatening to present criminal charges to gain advantage in civil matter. [Added 5/2/11] -- Florida Bar v. Knowles (Fla., No. SC09-403, 4/28/2011), 2011 WL 1587360.
Court abused its discretion in granting motion for post-trial juror interviews. [Added 3/19/11] -- Parra v. Cruz, 59 So.3d 211 (Fla. 3d DCA 2011).
Court erred in granting motion to interview jurors that was not timely filed. [Added 3/17/11] -- Hannon v. Shands Teaching Hospital and Clinics, Inc., 56 So.3d 879 (Fla. 1st DCA 2011). Rule 4-4.2 does not bar plaintiff's lawyers from communicating ex parte with treating physicians who are employed by defendant hospital. [Added 2/8/11] -- Lee Memorial Health System v. Smith, 56 So.3d 808 (Fla. 2d DCA 2011).
Florida Bar approves opinion addressing when lawyers may communicate with employees of state agency without consent of agency's counsel. [Added 12/16/10] -- In December 2010 the Florida Bar Board of Governors modified and approved an advisory ethics opinion addressing questions relating to a lawyer's communication with employees of a state agency without the consent of the agency's legal counsel. Florida Ethics Opinion 09-1 applies Rule 4-4.2 of the Florida Rules of Professional Conduct. to a fact situation in which a law firm that represents 4 clients in judicial or administrative proceedings involving a state regulatory agency wishes to communicate with certain employees of the agency without going through the agency's legal counsel.
The headnote accompanying Opinion 09-1 summarizes the conclusions reached in the opinion: "A lawyer may not communicate with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency’s lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation. The lawyer may be required to identify himself or herself as a lawyer who is representing a party in making those contacts. Lawyers communicating with agency personnel are cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials. If a lawyer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, the lawyer should ask State Agency’s lawyer if the person is represented in the matter before making the communication."
Lawyer held in indirect criminal contempt and jailed for post-trial contact with juror after court denied permission. [Added 6/3/10] -- Alan v. State, 39 So.3d 343 (Fla. 1st DCA 2010).
Court erred in enjoining parties, their counsel, and their agents from engaging in out-of-court publicity "consistent with" Rule 4-3.6. [Added 5/27/10] -- E.I. DuPont de Nemours and Co. v. Aquamar, S.A., 33 So.3d 839 (Fla. 4th DCA 2010).
Florida patient confidentiality statute prohibits ex parte communication between non-party physician and his own lawyer. [Added 11/19/06] -- Hannon v. Roper, 954 So.2d 534 (Fla. 1st DCA 2006).
Police detective's alleged deception of defendant's lawyer is not grounds for suppressing defendant's resulting statement. [Added 11/16/06] -- State v. Raines, 944 So.2d 421 (Fla. 5th DCA 2006).
Lawyers for defendant hospital may have ex parte contact with deceased patient's non-party treating physicians, who were hospital agents, employees, or former employees. [Added 10/3/05] -- Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277 (Fla. 2d DCA 2005). See also Lee Memorial Health System v. Smith, 40 So.3d 106, 107 (Fla. 2d DCA 2010) ("physician-patient privilege does not apply to [medical center]'s communications with its employee physicians because such communications are not 'disclosures' that trigger the privilege").
Lawyer represented by counsel in postconviction criminal matter did not violate Rule 4-4.2 by ex parte communication with state's attorney. [Added 1/31/05] -- Durie v. State, 901 So.2d 171 (Fla. 5th DCA 2005) (on rehearing).
Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under F.S. SEC. 286.0115. [Added 2/9/04] -- City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4th DCA 2004).
Court erred in granting defense counsel's motion for ex parte contacts with physicians who treated deceased nursing home patient; contacts barred by patient-physician privilege. [Added 1/29/04] -- Knittel v. Beverly Health and Rehabilitative Services, Inc., 863 So.2d 1279 (Fla. 2d DCA 2004).
Where a contractual confidentiality agreement was determined not to protect certain information held by person, opposing counsel could communication with person in informal ex parte interview. [Added 8/13/03] -- Nestor v. Posner-Gerstenhaber, 857 So.2d 953 (Fla. 3d DCA 2003).